Regulated market means a multilateral system operated and/or managed by a market operator, which brings together or facilitates the bringing together of multiple third-party buying and selling interests in financial instruments in the system, in accordance with its non-discretionary rules, in a way that results in a contract, in respect of the financial instruments admitted to trading under its rules and/or systems, and which is authorised and functions regularly and in accordance with the provisions of Title III of MiFID Directive.

ESMA database of European regulated markets under MiFID I was a key source for credible data on regulated markets activity in Europe.

Under MiFID I most European countries had only a small number of regulated markets. The exceptions were Germany, United Kingdom, Spain and Italy, which possessed a higher than average number.

The MiFID II Impact Assessment of the UK HM Treasure (p. 17) referred to 13 regulated markets in the UK, which amounted to 13% of the total 104 regulated markets in Europe.

In addition to the EU, the ESMA's list included also regulated markets in Norway and Iceland.

The database listed also identification codes for regulated markets. The list was published for the purpose of identification of the counterparty to the transaction as regards to transaction reporting.

According to Article 56 of MiFID II ESMA is also required to publish on its website and keep up to date a list of all regulated markets.

This register contains the unique code (Market Identifier Code - MIC) established by ESMA in accordance with Article 65(6) identifying the regulated markets for use in reports in accordance with point (g) of Article 65(1) and point (g) of Article 65(2) of MiFID II and with Article 6, 10 and 26 of MiFIR.

The register contains data related to the European Union and European Economic Area (EEA) / European Free Trade Association (EFTA) States.

The register, as visited on 9 January 2018, was populated with data regarding 29 regulated markets.

Regulated markets and MTFs are not allowed to execute client orders against proprietary capital.

As opposite to MTFs and OTFs, regulated markets are characterized by the fact that the operating of this type of multilateral system does not represent an investment activity or service.

The fifth sentence of recital 7 of MiFIR explains that regulated markets (similarly to MTFs) are not obliged to operate a ‘technical’ system for matching orders and should be able to operate other trading protocols including systems whereby users are able to trade against quotes they request from multiple providers.

Third-country markets considered as equivalent to a regulated market in the European Union

Pursuant to Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (EMIR) derivatives contracts the execution of which does not take place on a regulated market (or on an equivalent third-country market) are over-the-counter (OTC) derivatives.

In particular, European Commission deems US Designated Contract Markets (DCMs) that operate under the regulatory oversight of the CFTC as equivalent to EU regulated markets in accordance with EMIR - see the Commission Implementing Decision (EU) 2016/1073 of 1 July 2016 on the equivalence of designated contract markets in the United States of America in accordance with Regulation (EU) No 648/2012 of the European Parliament and of the Council.

The Decision went into force on 22 July 2016. A list of the relevant DCMs is set out in the Annex to the said Commission Implementing Decision.

The practical effect of the Decision is that products traded on equivalent third-country markets (in this case DCMs subject to CFTC regulatory oversight) no longer fall under the OTC derivative definition under EMIR Article 2(7) and therefore are no longer subject to the EMIR obligations relevant to OTC derivatives (such as the inclusion within the calculation of the clearing threshold for non-financial counterparties).

Further, on 16 December 2016 the European Commission has adopted equivalence decisions to the same effect in relation to Australia, Canada, Japan and Singapore determining that the rules governing trading venues in those countries can be deemed equivalent to those in the EU (the European Commission's Press release IP/16/4385).

Impact on collateral

As said above, unlike MTFs and OTFs, positions on regulated markets (or on an equivalent third-country market) do not count towards EMIR clearing thresholds.

Pursuant to Article 29(1) MiFIR the operator of a regulated market must ensure that all transactions in derivatives that are concluded on that regulated market are cleared by a CCP.

It means, collateral applied for regulated markets trading will have to fulfil identical requirements to the ones already used for OTC markets under EMIR.

MiFID II framework for regulated markets reflects the regulation of investment firms in respect of the conditions for authorisation and the general operating conditions. In particular, there are requirements governing:

- authorisation;

- the stability of the management;

- the suitability of those who control the management; and

- organisation.

MiFID I already has the category of regulated markets.

The changes to the existing framework for algorithmic trading and transparency notwithstanding, the most significant change MiFID II makes with respect to regulated markets is the update of the provisions dealing with the suitability of the management in the same way as the similar provisions for investment firms, and, more broadly, the introduction of a modified regime for the operation of the management board.

Consequently, when it comes to costs, regulated markets will need to commit resources to reviewing their existing management board arrangements to ensure that they comply with the specific requirements under MiFID II and make the necessary changes.

However, the management board requirements are aimed at ensuring that regulated markets are more effectively run. This should also help to strengthen the resilience of secondary trading and the quality of trading services that are offered (Financial Conduct Authority, Markets in Financial Instruments Directive II Implementation – Consultation Paper I (CP15/43), December 2015, CP15/43, p. 56).

MiFID II contains, moreover, provisions, which deal with the specifics of regulated markets. Among them are:

- admission to trading of financial instruments;

- suspension and removal of instruments from trading;

- access to regulated markets;

- compliance with the rules of the market;

- clearing and settlement.

The above provisions are aimed at investor protection and ensuring that regulated market is properly run and has clear, transparent and non-discriminatory rules. Another purpose is that regulated markets are properly monitored and enforced.

MiFID II Directive leaves these provisions largely unchanged (with some exceptions relating to the suspension and removal of instruments from trading).

Article 53(1) of MiFID II requires regulated market to establish, implement and maintain transparent and non-discriminatory rules, based on objective criteria, governing access to or membership of the regulated market.

The brief overview of the non-exhaustive list of arrangements which are considered non-objective and discriminatory has been given by the EU financial market watchdog in the Questions and Answers on MiFID II and MiFIR market structures topics of 7 July 2017 (ESMA70-872942901-38).

In the document ESMA said:

a) Regulated markets should not require members or participants to be direct clearing members of a CCP.

Given the protections afforded to non-clearing members under MiFIR and EMIR, as well as the rules on straight through processing (STP), a regulated market should not require all its members or participants to be direct clearing members of a CCP.

Regulated markets may however require members or participants to enter into, and maintain, an agreement with a clearing member as a condition for access when trading is centrally cleared.

b) For financial instruments that are centrally cleared, regulated markets should not allow members or participants to require other members or participants to be enabled before they are allowed to trade with each other.

There are legitimate checks that regulated markets might carry out before allowing a member or participant on to their venue.

For example, in markets for non-centrally cleared financial instruments regulated markets may wish to carry out credit checks, or ensure that a member or participant has appropriate capital to support the positions it intends to take on the regulated market.

In a non-centrally cleared derivatives market, there may be a need for bilateral master netting agreements to be in place between participants before the trading venue can allow their trading interests to interact.

Regulated markets will also need to be comfortable that potential participants are meeting the regulatory requirements to be a member of a trading venue such as having appropriate systems and controls to ensure fair and orderly trading.

However, in centrally cleared markets, enablement mechanisms whereby existing members or participants of a regulated market can decide whether their trading interests may interact with a new participant’s trading interest are considered discriminatory and an attempt to limit competition.

Enablement mechanisms also reduce the transparency around the liquidity available on different regulated markets.

c) Regulated markets should not require minimum trading activity.

Regulated markets should not require minimum trading activity to become a member or participant of a regulated market, as this could restrict the access to the regulated market to large members or participants.

d) Regulated markets should not impose restrictions on the number of participants that a participant can interact with.

In a request for quote (RFQ) protocol, a regulated market should not impose limits on the number of participants that a firm can request a quote from.

Whilst a firm requesting a quote may, in compliance with Article 28 of MiFID II, want to limit the number of participants it requests quotes from in order to minimise the risk of unduly exposing its trading interest, which could result in it obtaining a worse price, this should not be mandated by the regulated market.

For instance, where a smaller firm is requesting a quote to execute a low volume trade, it might be less concerned about the risks of exposing its trading interest, and so happier to request quotes from a larger number of market makers or liquidity providers.

Limiting the number of participants a firm can request quotes from risks restricting the ability of market participants to access liquidity pools, and only sending requests to traditionally larger dealers who they assume might have larger inventories.

This simultaneously restricts the ability of the requestor to access the best pool of liquidity and reduces the likelihood of a smaller dealer receiving requests, despite it having a strong trading interest.

Eligibility to be a member or participant of a regulated market

The eligibility to be a member or participant of a regulated market in the EU is not restricted to authorised investment firms only,

Article 53(3) of MiFID II provides that an entity that is not an investment firm or a credit institution can be a member of a regulated market under certain conditions.

The above stance is supported by the ESMA’s answer to the Question 4 (Questions and Answers on MiFID II and MiFIR market structures topics, ESMA70-872942901-38, Multilateral and bilateral systems, General, updated on 07.07.2017).

Can a person that is not authorised as an investment firm but meets the requirements of Article 53(3) of MiFID II be a member or participant of a regulated market or an MTF?

Answer

Yes. Article 53(3) of MiFID II provides that an entity that is not an investment firm or a credit institution can be a member of a regulated market under certain conditions, this rule being extended to MTFs by Article 19(2) of MiFID II.

ESMA considers that this provision should be read in conjunction with the requirements of Article 2(1). Under this provision, a person falling under any of the categories listed in Article 2(1) would not have to be authorised as an investment firm.

However, pursuant to Article 2(1)(d) (ii) of MiFID II, when a person dealing on own account in financial instruments other than commodity derivatives or emission allowances or derivatives thereof and not providing any other investment services or performing any other investment activities in such instruments is also a member of or a participant in a regulated market or an MTF, it falls under the scope of MiFID II, and should accordingly be authorised as an investment firm unless:

- it is exempted under points (a), (i) and (j); or

- it is a non-financial entity which executes transactions on a trading venue which are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of that non-financial entity or its group.

As a consequence, the reference in Article 53(3) to persons other than investment firms and credit institutions only relates to entities that are exempted from authorisation under Article 2(1), such as insurance companies or collective investment undertakings, as long as their own regulatory framework permits them to do so.

This Q&A does not address the issue of non-EEA firms being a member or participant of an EEA trading venue.

Algorithmic trading

As with investment firms MiFID II introduces new provisions for regulated markets dealing with algorithmic trading.

The requirements seek to ensure that the regulated markets have proper governance, testing and continuity arrangements around algorithmic trading to minimise disruption to trading on their markets.

They also seek to ensure that trading venues encourage market making particularly in stressed market conditions.

Exclusion of members of or participants in regulated markets from the dealing on own account exemption under Article 2(1)(d) of MiFID II

Article 18(3) of MiFID II requires that investment firms and market operators operating an MTF or OTF establish, publish and maintain and implement transparent and non-discriminatory rules, based on objective criteria, governing access to its facility. A similar requirement is applied to regulated markets through Article 53(1) of MiFID II. What sort of behaviour or restrictions should be considered as non-objective, or discriminatory?

Answer

One of the benefits of more on-venue, pre-trade transparent trading is to broaden access to liquidity for market participants. In order for these benefits to be fully realised, it is important that trading venues do not have restrictive criteria governing their access, which place unreasonable restraints on certain market participants’ access to particular liquidity pools.

In particular, ESMA does not consider the following arrangements to be in compliance with Articles 18(3) and 53(1) of MiFID II. This is not, however, an exhaustive list of arrangements which are non-objective and discriminatory.

a) Trading venues should not require members or participants to be direct clearing members of a CCP.

Given the protections afforded to non-clearing members under MiFIR and EMIR, as well as the rules on straight through processing (STP), a trading venue should not require all its members or participants to be direct clearing members of a CCP. Trading venues may however require members or participants to enter into, and maintain, an agreement with a clearing member as a condition for access when trading is centrally cleared.

b) For financial instruments that are centrally cleared, trading venues should not allow members or participants to require other members or participants to be enabled before they are allowed to trade with each other.

There are legitimate checks that a trading venue might carry out before allowing a member or participant on to their venue. For example, in markets for non-centrally cleared financial instruments trading venues may wish to carry out credit checks, or ensure that a member or participant has appropriate capital to support the positions it intends to take on the trading venue. In a non-centrally cleared derivatives market, there may be a need for bilateral master netting agreements to be in place between participants before the trading venue can allow their trading interests to interact. Trading venues will also need to be comfortable that potential participants are meeting the regulatory requirements to be a member of a trading venue such as having appropriate systems and controls to ensure fair and orderly trading.

However, in centrally cleared markets, enablement mechanisms whereby existing members or participants of a trading venue can decide whether their trading interests may interact with a new participant’s trading interest are considered discriminatory and an attempt to limit competition. Enablement mechanisms also reduce the transparency around the liquidity available on different trading venues.

c) Trading venues should not require minimum trading activity.

Trading venues should not require minimum trading activity to become a member or participant of a trading venue, as this could restrict the access to the trading venue to large members or participants.

d) Trading venues should not impose restrictions on the number of participants that a participant can interact with.

In a request for quote (RFQ) protocol, a trading venue should not impose limits on the number of participants that a firm can request a quote from. Whilst a firm requesting a quote may, in compliance with Article 28 of MiFID II, want to limit the number of participants it requests quotes from in order to minimise the risk of unduly exposing its trading interest, which could result in it obtaining a worse price, this should not be mandated by the trading venue. For instance, where a smaller firm is requesting a quote to execute a low volume trade, it might be less concerned about the risks of exposing its trading interest, and so happier to request quotes from a larger number of market makers or liquidity providers.

Limiting the number of participants a firm can request quotes from risks restricting the ability of market participants to access liquidity pools, and only sending requests to traditionally larger dealers who they assume might have larger inventories. This simultaneously restricts the ability of the requestor to access the best pool of liquidity and reduces the likelihood of a smaller dealer receiving requests, despite it having a strong trading interest.

Application of MiFID II after 3 January 2018, including issues of ‘late transposition’

Question 1 [Last update: 18/12/2017]

Should authorisations as a regulated market granted under MiFID I still be valid after 3 January 2018?

Answer 1

Yes, the authorisations granted under MiFID I should continue to be valid after 3 January 2018. This applies also to the authorisations for market operators to operate an MTF. However, ESMA notes that competent authorities, as set out in Article 44 of MiFID II (and, already, Article 36 of MiFID I), should monitor that market operators comply at all times with the conditions for initial authorisation and therefore regularly review conditions for initial authorisation.

Question 2 [Last update: 18/12/2017]

Can regulated markets established in Member States that have not transposed MiFID II at the date of 3 January 2018, and that already have a valid authorisation, continue to provide appropriate arrangements in other EU Member States that facilitate access to and trading on those markets by remote members and participants after the entry into application of MiFID II?

Answer 2

Regulated markets established in Member States that have not transposed MiFID II by 3 January 2018 but that have already been authorised under MiFID I and have already provided appropriate arrangements that facilitate access to and trading on those markets by remote members and participants in other Member States, may continue to provide these arrangements in those Member States. The competent authorities of regulated markets that provide such arrangements on the territory of other Member States may be requested to reassure host Member States competent authorities that, pending transposition of MiFID II, they are applying the detailed operating conditions included in MiFID II.